Defamation Law.
The laws around defamation are designed to protect the reputation of individuals and provide a means of compensation if that reputation is unjustly damaged. Due to walking the fine line between safeguarding freedom of speech and protecting individuals against unjustified attacks on their character, the laws in this area are notoriously tricky to navigate.
WHEN REPUTATIONS ARE UNDERMINED
What is defamation?
In simple terms, defamation is any unjustified communication made by one person to another person (or many people) which harms the reputation of a third person.
However, a statement or visual which casts poor light on someone is not automatically defamation.
To qualify as defamation a number of elements need to be present:
There was a defamatory matter;
The defamatory matter was published;
The defamatory matter specifically identifies a person (as opposed to a vague class of people; such as “all lawyers” or “all people on the Mid North Coast” );
The defamatory matter caused (or is likely to cause) serious harm to another persons’ reputation. This may present as hatred towards them, general embarrassment or opening them up to ridicule.
Importantly the standard for what is defamation is an objective standard which evolves as society changes. For example, the defamation claims by Oscar Wilde in 1895 which centred around the poet’s homosexuality would not have the same weight today due to society's progress on this topic.
Defamation Law in an internet age – battling keyboard warriors
& online trolls.
The internet is no longer a novelty or even just a helpful tool, rather it has become an ingrained part of who we are as global species. With the average Australians spending well over 6 hours online every day the line between the ‘real’ world and the ‘cyber’ world is increasingly blurred. As more and more of our work, entertainment and social interaction moves online it is no surprise that the idea of protecting our reputations in that sphere is a booming area of the law.
Unfortunately the principles around defamation were carefully crafted in an age where the damage to reputation was more likely inflicted by inkwells, newspapers, and public speeches rather than Instagram, Facebook or Twitter. The internet allows us all to be global publishers from the comfort of our loungerooms, but with this great power comes great responsibility.
The law is rapidly trying to adapt to this ever-shifting technological landscape, and although it is easy to misconceive these online platforms as a lawless space, a better approach is to view them as equal to your local town’s main street. Before posting (or sharing) online you should always consider if you would go into those physical public spaces and yell out the same statement or display the same picture on a billboard.
“(Not) based on a true story”
How often have you seen this phrase displayed in books or on the flix’ and wondered where the facts end and fiction begins. Quite often creators will change the name, shuffle up the event or claim that their work is a tapestry of many different people, to try and distance themselves from a potential defamation claim.
However, if a reasonable person is able to see through the veil and make the connection about whom the work is referencing then a defamation claim may still be possible. For example, if a writer were to publish terrible lies about “Henry Potter,” scandalously smear the reputation of “Thursday” from the Adams Family, or post damaging pictures of “arachnid boy” then Harry, Wednesday, and Spider-Man should really consider giving us a call.
Speaking ill of the dead
Growing up in country Australia we are often provided with little gems of bush wisdom which we never stop to question. From being told to not blow our own trumpet, not to swim directly after eating, never to swallow chewing gum and to let the sleeping dog lie. Another of these wise warnings is to never speak ill of the dead. Despite that advice it’s now common for mud to be thrown – especially online – about those recently departed.
Generally, the estate of a deceased person (or its beneficiaries) cannot claim against someone who defames the deceased. The exception to this being if the defamation is intended to lower the reputation of the deceased’s surviving family members.
At Abbotts & Co Lawyers we love working with clients to protect their legacy however if you feel you are being defamed we highly recommend you take action as soon as possible; while you are still fighting fit.
CHOOSE YOUR WEAPON
What defences are available
for defamation?
Consent
If a person consents to the publication of an article or a photo which holds defamatory content, then they may be able to rely on that consent as a defence.
The truth defence
It is a complete defence to defamation if the defendant can show that what they published is substantially or contextually true. That is to say that the intention in publishing was only to present the facts.
Relying on this defence is much more difficult than just screaming “you can’t handle the truth!” in a courtroom. In using this defence, you can only rely on original documents and credible first- hand witnesses who are willing to testify.
Honest opinion/ fair comment
This defence is especially important for individuals such as comedians, critics and anyone else who engages in social commentary.
To use this defence the defendant needs to be able to demonstrate that the material was an expression of opinion rather than a statement of unquestionable fact and related to a matter of public interest. Additionally, the opinion must have some basis on proper material that is substantially true and contained in public documents.
In regard to what is a “fair comment” it's important to note that it does not need to be objectively reasonable. In fact, the opinion may be an incredibly extreme or unpopular view, but it may still be ‘fair’ as long as it is honestly held.
Because of the nature of this defence, it is important to think carefully and seek legal advice before you respond to a defamation complaint. If you were to quickly respond stating it was a mistake and that you didn’t actually mean what you said, then you may be denying yourself access to this defence.
The public interest defence
There is a defence for where the publication of the defamatory material was concerning an issue of public interest and the publisher was of the sound belief that publishing the information was serving a reasonable public good.
Defence of innocent dissemination
The defence of innocent dissemination is available to secondary (or subordinate) publisher. These are people who merely spread the content which was previously created by someone else (such as printers, booksellers, newsagents, or broadcasters of live TV).
To be covered by this defence a subordinate publisher must be able to show that they did not know (or should not have reasonably known) that the content they helped spread was defamatory, and their ignorance was not due to negligence. An example of this defence in practice would be a local newsagent not being held responsible for selling to its customers a magazine which defamed another resident.
The law in Australia is still coming to terms with this defence in relation to the online landscape. It is still unclear whether search engines like Google or other content platforms (such as Facebook, Instagram and TikTok) are able to rely on this defence via claiming they are mere facilitators of the content rather than a publisher.
SETTING THINGS STRAIGHT
Being sued for a defamatory statement?
If you have received notice that you are being sued for publishing a defamatory statement, then it is best to act without delay. At Abbotts and Co Lawyers, we will provide clear advice about how best to respond and move forward, be that through settlement or by standing your ground.
ATTACK OF THE TROLLS
I have been defamed, what can I do about it?
If you or your business are suffering an attack of false and malicious claims it is best to remain calm, collect all the necessary information (i.e. screenshots about the defamatory content, their author, and information about the potential spread) and contact us for further support.
Due to the complicated nature or defamation law and the raw emotions which arise due to the personal nature of an attack on your reputation, it is essential to get a solicitor’s advice before responding.
Don’t delay; take action today.
You must commence legal action within twelve (12) months from the date of publication (for online content this is the first upload or posting). There are some very limited circumstances in which defamation proceedings may be started outside of this period – such as not being aware of the publication until after 12 months from publication, or where it was not previously possible to identify the publisher. In any case, time is of the importance and action should be commenced as soon as possible after publication takes place.
Feel empowered and set the record straight
Being more than just lawyers, we hope to be your partners through the entire process of reputation repair. If you feel you have been wronged by a shady defamatory statement, we urge you to contact our committed and understanding team so we may develop a response strategy.
At Abbotts and Co Lawyers, we want to empower you to correct the record, swiftly stop any further attacks on your reputation, and where possible seek out compensation.
“At Abbotts & Co Lawyers, we will assist you to formally write to the publisher, advising them of their defamation (known as a ‘concerns notice’). The publisher is then provided the opportunity to ‘make amends’.
Should this initial approach fail to resolve the matter than further options such as injunctions and suing for damages will be explored.”